10860210 (B.P.A.I. Aug. 23, 2011)

Ex Parte Grist et al

Board of Patent Appeals and InterferencesAug 23, 2011

10860210 (B.P.A.I. Aug. 23, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/860,210 06/03/2004 Thomas M. Grist 960296.00127 8010 7590 08/23/2011 Barry E. Sammons Quarles & Brady LLP 411 East Wisconsin Avenue Milwaukee, WI 53202 EXAMINER LAMPRECHT, JOEL ART UNIT PAPER NUMBER 3737 MAIL DATE DELIVERY MODE 08/23/2011 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE 1 ___________ 2 3 BEFORE THE BOARD OF PATENT APPEALS 4 AND INTERFERENCES 5 ___________ 6 7 Ex parte THOMAS M. GRIST and ORHAN UNAL1 8 ___________ 9 10 Appeal 2010-002725 11 Application 10/860,210 12 Technology Center 3700 13 ___________ 14 15 16 Before JOHN C. KERINS, ROBERT A. CLARKE and EDWARD A. 17 BROWN, Administrative Patent Judges. 18 CLARKE, Administrative Patent Judge. 19 DECISION ON APPEAL 20 21 1 The real party in interest is the Wisconsin Alumni Research Foundation (App. Br. 1). Appeal 2010-002725 Application 10/860,210 2 STATEMENT OF THE CASE 1 Thomas M. Grist et al. (Appellants) seek our review under 35 U.S.C. 2 § 134 of the Examiner’s rejection of claims 1-10. (App. Br. 2). We have 3 jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) (2002). 4 We REVERSE. 5 6 THE INVENTION 7 Appellants’ claimed invention is directed to a method for performing 8 an inversion recovery MRI pulse sequence in which the delay time TI 9 following application of an inversion RF pulse is established retroactively. 10 MRI data is acquired by repeating a pulse sequence in which data is acquired 11 continuously for an interval of time following application of an inversion RF 12 pulse. After the scan is completed, an image is reconstructed by selecting a 13 subset of the MRI data based on the retrospectively selected delay time. 14 (Spec. 4, Para [0014]). Claim 1, reproduced below with emphasis added, is 15 illustrative: 16 1. A method for producing an image of a subject with 17 an MRI system, the steps comprising: 18 a) performing a pulse sequence a plurality of 19 times with the MRI system, the pulse sequence 20 including: 21 i) a magnetization preparation RF pulse; 22 ii) a data acquisition portion, which occurs during 23 a time period following the magnetization preparation 24 RF pulse, in which k-space data is acquired by 25 acquiring a series of projections that samples different 26 radial trajectories in k-space, wherein during each 27 repetition of the pulse sequence, a different series of 28 Appeal 2010-002725 Application 10/860,210 3 projections is acquired that samples different radial 1 trajectories in k-space; 2 b) retrospectively determining a delay time within 3 the time period following the magnetization preparation 4 RF pulse; 5 c) forming a k-space data set from k-space 6 sample trajectories acquired in step a) at the delay time 7 determined in step b); and 8 d) reconstructing the image from the k-space data 9 set formed in step c). 10 11 REFERENCES 12 The prior art relied upon by the Examiner in rejecting the claims on 13 appeal is: 14 Mistretta US 2003/0060698 A1 Mar. 27, 2003 Kim US 2005/0245812 A1 Nov. 3, 2005 (filed Apr. 29, 2004) THE REJECTION 15 Claims 1-10 stand rejected under 35 U.S.C. 103(a) as being 16 unpatentable over Mistretta and Kim. (Ans. 3). 17 18 ISSUE 19 Whether the Examiner erred in finding that the disclosure of Kim to 20 vary a delay time before a magnetization preparation RF pulse occurs would 21 teach one of ordinary skill in the art to retrospectively determine a delay 22 time following the magnetization preparation RF pulse as called for in claim 23 1 or to select a delay time following an RF inversion pulse as called for in 24 claim 6, within the time period during which data is collected and in thus 25 Appeal 2010-002725 Application 10/860,210 4 concluding that the invention set forth in the appealed claims would have 1 been obvious in view of the combined teachings of Mistretta and Kim. 2 3 ANALYSIS 4 The Examiner concluded that it would have been obvious to modify 5 the method disclosed by Mistretta to include: (1) a step of producing a 6 magnetization preparation RF pulse and a step of retrospectively 7 determining a delay time after the magnetization preparation RF pulse 8 within the time period during which data is collected, or (2) a step of 9 producing an RF inversion pulse and selecting a delay time after the RF 10 inversion pulse within the time period during which data is collected, as 11 suggested by Kim’s disclosure to vary a time period before the 12 magnetization preparation RF pulse in order to null the signal from the 13 normal myocardium and to isolate acquired data at the properly selected 14 delay time after the preparation pulse(s). (Ans. 4, 8). 15 Appellants note 16 Kim expressly describes that "TDEL represents the time of 17 the inversion recovery pulse (lR pulse) relative to the R 18 peak of the electrocardiogram (ECG) signal of a patient." 19 See Kim, page 3, ¶ [0034]. To this end, TDEL defines the 20 cardiac gating of the conventional IR pulse sequence 21 taught by Kim. This TDEL parameter is then stepped 22 through a plurality of prescribed values so that images 23 from different cardiac phases can be reconstructed. See 24 Kim, page 3, ¶ [0035]. 25 (App. Br. 20). Appellants further note that Kim states that “additional 26 images for other cardiac phases are made by performing the processing at 27 other values of TDEL using the same TI” (emphasis added by Appellants). 28 (App. Br. 21). Appellants note that “[a]s identified by the [Appellants’] 29 Appeal 2010-002725 Application 10/860,210 5 application, the optimal inversion time for the nulling of healthy myocardial 1 tissue varies not only from subject to subject, but can also vary between 2 subsequent examinations of the same subject”. (App. Br. 16). 3 Appellants argue that by maintaining the same TI after the pulse, that 4 Kim teaches to provide a plurality of images showing the heart at different 5 cardiac phases, but it does not show a plurality of images with different 6 tissue contrasts. (App. Br. 20). Further, Appellants argue that Kim would 7 teach to reconstruct various cardiac images in the cardiac cycle, which all 8 would have the same image contrast between healthy and infarcted 9 myocardium based on prospectively selected TI. (App. Br. 21). Appellants 10 also argue that one skilled in the art would appreciate that Kim does not 11 recognize that the normal variation in TI value for healthy myocardium can 12 result in less than desirable image contrast, and that Kim does not provide 13 any suggestion of a solution to solve this problem because Kim teaches to 14 acquire data with respect to a prospectively selected TI. (App. Br. 22). 15 In responding to the Appellants, the Examiner makes a first finding 16 that Appellants’ Specification at paragraph [0011] provides that images may 17 be reconstructed at a particular cardiac phase by varying “delay time” after 18 the cardiac trigger. (Ans. 8). The Examiner makes a second finding that 19 Kim “allows for cardiac images of a particular delay time (‘TDEL’) to be 20 selected once imaging has been performed… and a multitude of successive 21 TDELs have been ‘stepped through’ in order to reconstruct images from 22 different cardiac phases”. (Ans. 8, 9). 23 Appellants note that paragraph [0011] of their Specification describes 24 prior art methods for cardiac gating of a pulse sequence. (Reply. Br. 2). 25 Appellants argue “delay time” is distinctly and unambiguously defined in 26 Appeal 2010-002725 Application 10/860,210 6 the context of claims 1 and 6. In particular, delay time in the context of 1 claim 1 is argued by Appellants as necessarily existing in a time period 2 following the application of a magnetization preparation radio frequency 3 pulse in claim 1. (Reply. Br. 2, 3). 4 While we agree that Kim teaches to collect a series of images of a 5 beating heart throughout the cardiac cycle, Kim discloses to do so by 6 varying the time between the cardiac trigger signal and the RF inversion 7 pulse. (Kim, Paras. [0034 and 0035]). The delay time following the pulse, 8 TI, is prospectively set at a value to normally null out signals from healthy 9 myocardium to improve imaging of infarcted myocardium and as such does 10 not suggest a solution to the problem of variation in TI for healthy tissue. 11 (Kim, Para [0034]). Kim thus fails to teach determining or selecting a delay 12 time in the time period following a magnetization preparation RF pulse or 13 RF inversion pulse, during which data is collected, as is called for in claims 14 1 and 6. Moreover, the Examiner has not articulated why a teaching to vary 15 the time between a cardiac trigger signal and an RF inversion pulse would 16 have led one skilled in the art aware of the teaching to modify Mistretta to 17 retroactively determine a delay time following the magetization preparation 18 RF pulse as called for in claim 1, or to select a delay time following the RF 19 inversion pulse, within the time period during which data is collected as 20 called for in claim 6, since varying the time after the cardiac trigger signal 21 until the RF inversion pulse occurs does not improve the degree that the 22 signals from normal myocardium are nulled or improve isolation of acquired 23 data. In short, on the basis of the record before us, the Examiner’s 24 articulated reason for modifying Mistretta to include a step of determining a 25 delay time within the time period following the magnetization preparation 26 Appeal 2010-002725 Application 10/860,210 7 RF pulse or selecting a delay time following the RF inversion pulse is not 1 supported by rational underpinning and is instead based on a 2 misapprehension of what the Kim reference actually teaches. 3 We will not sustain the rejection of claims 1-10 as being unpatentable 4 over Mistretta in view of Kim. 5 6 CONCLUSION 7 The Examiner erred in finding that the disclosure of Kim to vary a 8 delay time before a magnetization preparation RF pulse occurs would teach 9 one of ordinary skill in the art to retrospectively determine a delay time 10 following the magetization preparation RF pulse as called for in claim 1 or 11 to select a delay time following the RF inversion pulse as called for in claim 12 6, within the time period during which data is collected and in thus the 13 Examiner’s conclusion that the subject matter of the claims on appeal would 14 have been obvious lacks adequate factual underpinnings. 15 16 DECISION 17 The Examiner’s rejection of claims 1-10 is reversed. 18 19 REVERSED 20 21 mls 22